Citation Nr: 0832150
Decision Date: 09/19/08 Archive Date: 09/30/08
DOCKET NO. 07-31 346 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to an initial evaluation in excess of 30 percent
for post-traumatic stress disorder (PTSD).
ATTORNEY FOR THE BOARD
M. Pansiri, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1970 to
February 1972, and was awarded a Purple Heart and a Combat
Infantryman Badge for his service in Vietnam.
This appeal comes before the Board of Veterans' Appeals
(Board) from a June 2005 rating decision of the Department of
Veterans Affairs (VA), Decatur, Georgia, Regional Office
(RO), which granted service connection for PTSD, and assigned
a 30 percent evaluation. The veteran disagreed with his
evaluation and subsequently perfected an appeal.
According to VA Form 23-22, the veteran revoked Disabled
American Veterans as his representative in May 2005. The
Board therefore finds that the veteran wishes to represent
himself.
FINDINGS OF FACT
1. The veteran's service-connected PTSD is manifested by
such symptoms as social isolation, irritability, anger,
occasional depression, hypervigilance, insomnia, and a Global
Assessment of Functioning (GAF) score of 65. There exists no
more than occupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks due to such symptoms
as depressed mood, anxiety, and chronic sleep impairment.
There is no evidence of occupational and social impairment
with reduced reliability and productivity due to such
symptoms as impairment of short-term memory, impaired impulse
control, depressed mood, and recurrent nightmares.
2. The competent medical evidence does not show that the
veteran's service-connected PTSD is so exceptional or unusual
that referral for extraschedular consideration by the
designated authority is required.
CONCLUSION OF LAW
The criteria for an initial disability evaluation in excess
of 30 percent for service-connected PTSD are not met. 38
U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp.
2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.10,
4.126, 4.130 Diagnostic Code 9411 (2007); Fenderson v. West,
12 Vet. App. 119 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
This notice must be provided prior to an initial unfavorable
decision on a claim by the agency of original jurisdiction
(AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The veteran's increased rating claim arises from his
disagreement with the assignment of a 30 percent initial
evaluation for the PTSD disability following the grant of
service connection. Courts have held that once service
connection is granted the claim is substantiated, additional
notice is not required, and any defect in the notice is not
prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir.
2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007);
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Therefore, no further notice is needed under VCAA for the
PTSD initial increased rating claim, and therefore appellate
review may proceed without prejudice. See Bernard v. Brown,
4 Vet. App. 384 (1993); Conway v. Principi, 353 F.3d 1369
(Fed. Cir. 2004); Sutton v. Brown, 9 Vet. App. 553 (1996);
Quartuccio, 16 Vet. App. 183; see also 38 C.F.R. § 20.1102.
II. Increased Rating Claim - PTSD
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (rating
schedule), found in 38 C.F.R. Part 4. Disability ratings are
intended to compensate impairment in earning capacity due to
a service-connected disorder. 38 U.S.C.A. § 1155; 38 C.F.R.
§ 4.1. Evaluation of a service-connected disorder requires a
review of the veteran's entire medical history regarding that
disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1
Vet. App. 589 (1991). Further, the entire recorded history,
including medical and industrial history, is considered so
that a report of a rating examination, and the evidence as a
whole, may yield a rating which accurately reflects all
elements of disability, including the effects on ordinary
activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41.
Because the appeal ensues from the veteran's disagreement
with the evaluation assigned in connection with the original
grant of service connection, the potential for the assignment
of separate, or "staged" ratings for separate periods of
time, based on the facts found, must be considered.
Fenderson v. West, 12 Vet. App. 119 (1999).
When a reasonable doubt arises regarding the degree of
disability, such doubt will be resolved in favor of the
veteran. 38 C.F.R. §§ 4.3, 4.7. If there is a question as
to which evaluation to apply to the veteran's disability, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria for that rating. 38
C.F.R. § 4.7. Otherwise, the lower rating will be assigned.
Id.
Under the General Rating Formula for Mental Disorders, a 30
percent evaluation will be assigned for PTSD with
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as depressed mood,
anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events). 38 C.F.R. §
4.130 Diagnostic Code 9411.
A 50 percent rating is assigned for occupational and social
impairment with reduced reliability and productivity due to
such symptoms as flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships. Id.
A 70 percent rating is assigned for occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as suicidal ideation; obsessional rituals which
interfere with routine activities; speech intermittently
illogical, obscure, or irrelevant; near-continuous panic or
depression affecting the ability to function independently,
appropriately, and effectively; impaired impulse control
(such as unprovoked irritability with periods of violence);
spatial disorientation; neglect of personal appearance and
hygiene; difficulty in adapting to stressful circumstances
(including work or a worklike setting); inability to
establish and maintain effective relationships. Id.
Total occupational and social impairment, due to such
symptoms as gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation or own name, will be
rated as 100 percent disabling. Id.
Under 38 C.F.R. § 4.130, the nomenclature employed in this
portion of the rating schedule is based upon the DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS (American Psychiatric
Association 4th ed. 1994) (DSM-IV). The GAF is a scale
reflecting the psychological, social, and occupational
functioning on a hypothetical continuum of mental health-
illness. American Psychiatric Association, DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS 46-47 (American Psychiatric
Association 4th ed. 1994).
In the DSM-IV, a 51-60 rating indicates moderate difficulty
in social, occupational, or school functioning, such as few
friends and conflicts with peers and co-workers, or a
moderate level of impairment, such as flat affect,
circumstantial speech, and occasional panic attacks. Id. A
61-70 rating indicates some difficulty in social,
occupational, or school functioning or some mild levels of
impairment, such as depressed mood and insomnia, but
generally functioning well and has some meaningful
interpersonal relationships. Id. See also Cathell v. Brown,
8 Vet. App. 539 (1996); Richard v. Brown, 9 Vet. App. 266,
267 (1996) (where the Court stated that a "GAF of 50 is
defined as [s]erious symptoms (e.g. suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious
impairment in social, occupational, or school functioning
(e.g. no friends, unable to keep a job)").
Since the grant of service connection, the veteran's GAF
score was initially a 60, then, upon completion of a VA
Examination in May 2005, a 65. As noted, the veteran was
awarded a Purple Heart and a Combat Infantryman Badge for his
combat service as a light weapons infantryman in Vietnam. As
demonstrated in the veteran's service medical records and May
1972 post-service VA medical records, the veteran suffered
multiple physical injuries as a result of his service in
Vietnam, including shrapnel wounds to his chest and back.
The veteran submitted a claim for service connection for PTSD
in January 2005; he reported experiencing such symptoms as
anger, irritability, social isolation, some anxiety,
insomnia, upsetting memories during news coverage of Iraq,
and occasional depression. He argues that these symptoms
have left him unable to work in more than an intermittent
capacity.
Evidence relevant to the severity of the veteran's PTSD
includes a June 2004 VA psychiatry initial assessment report.
According to the report, the veteran reported living alone,
being twice divorced, and maintaining contact with all four
of his children, one of whom he remains good friends. He
complained of anger, irritability, lack of sleep, possible
depression, and dreams of the war when watching the news.
The veteran believed that his primary problem was getting
along with others, and acknowledged that his substance abuse
played a major role. He stated that he enjoys fishing of
which he does as often as he can, and sometimes everyday.
The veteran also reported that he made no suicide attempts.
The psychologist noted that the veteran was casually groomed,
his insight and judgment were intact, and his thought process
was logical without bizarre content or preoccupation. The
veteran was initially diagnosed with alcohol dependence
attenuated, polysubstance abuse in remission, rule out PTSD,
and a GAF score of 60.
From July 2004 to March 2005, the veteran was counseled
during one-on-one sessions at the VA Medical Center in
Tallahassee. In July 2004, the veteran stated that many
years earlier he was bothered by distressing and intrusive
dreams of Vietnam, and the experiences occurred less. He
complained of anger, moodiness, difficulty dealing with
people and noises, heightened arousal, continued avoidance,
and numbing. The veteran reported that he works with his
daughter. His counselor noted that the veteran was fairly
clean and groomed; he maintained fair eye contact; he was
coherent and logical. The counselor also noted that the
veteran was mildly withdrawn, and he was intense, irritable,
and mildly vigilant. No suicidal or homicidal ideation was
noted. Diagnosis was symptoms reported were consistent with
PTSD. In November 2004, the veteran reported decreased
episodes of irritability and anger, but still maintained
difficulty with crowds and noisy places and recurring
intrusive dreams about combat which were less distressing and
more comforting. He reported continued part-time employment
with his daughter, and social interaction with family members
and a friend who is a combat veteran. He spent his time
fishing alone or with his friend, or listening to music. His
counselor noted that there were recurring symptoms of
increased reexperiencing and heightened arousal, and
avoidance and numbing in general responsiveness which are
consistent with PTSD. In March 2005, the veteran reported
that he was busy with work, and he experienced lesser
episodes of anger and irritability. His major complaints
were difficulty with sleep and occasional distressing dreams.
The counselor noted combat related issues and prescribed
lower doses of medication as a result of negative side
effects. No further PTSD treatment was sought by the veteran
as reflected in a report of all appointments by the veteran
to the VA Medical Center in Tallahassee from February 2004 to
October 2007.
The veteran underwent a VA psychological evaluation in May
2005; the examiner reviewed the claims file and noted that
the veteran had never undergone hospitalization for mental
health problems, that he had psychiatric treatment on prior
occasions and continues to receive treatment at a VA
Outpatient Clinic. The veteran reported that his bad temper
and a heart attack he suffered a few years ago contributed to
his inability to find a full-time job. He also reported that
he is close to 2 of his 4 children, that he had quite a few
friends, and that he would go fishing at least twice a week.
He also enjoyed watching baseball, reading, and having
friends over on Saturdays for barbecues. The veteran
described his mood as tired, and described his depression as
not happening very often. He was alert and fully oriented.
His speech was at a normal rate and volume, clear, concise,
and goal directed. The veteran denied hallucinations or
delusions. He did not manifest any bizarre or inappropriate
behavior. The examiner noted that the veteran had a capacity
to complete activities of daily living. His appetite and
concentration were good, and his self-esteem was positive.
The veteran denied recent intrusive memories, nightmares, or
flashbacks, but reported that he did have upsetting memories
of Vietnam when he watched news coverage of Iraq. The
veteran denied a sense of detachment, but reported that in
the last week prior to his visit he felt 10 percent detached
and noted that he was close to 6-10 people. The veteran
indicated he is always hypervigilant and experienced several
episodes of startle response. He reported that the onset of
PTSD occurred when he returned home from Vietnam but stated
that his symptoms were not as serious as before. He had no
suicidal or homicidal ideation. The examiner noted that the
veteran has suffered traumatic events since Vietnam,
including his divorces and the death of both of his parents.
The diagnosis was PTSD chronic, alcohol abuse, and a GAF
score of 65.
On review, the Board finds that the evidence of record
indicates that the veteran's PTSD signs and symptoms do not
more closely approximate the criteria for a rating greater
than 30 percent. In this case, the veteran experiences
occasional intrusive memories, occasional depression, anger
and irritability. However, there is no homicidal or suicidal
ideation, and the veteran is able to work and maintain
leisure time and interactions with friends and family. The
veteran rarely experiences panic attacks, and his memory is
regarded as normal. The veteran's symptomatology does not
reflect flattened affect, circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory; impaired judgment; impaired
abstract thinking; disturbances of motivation or mood; or
difficulty in establishing and maintaining effective work and
social relationships. The evidence of record reveals no
inappropriate behavior by the veteran. In fact, the veteran
has been able to maintain his personal hygiene and other
activities of daily living. He has always been noted as
alert and oriented. While he has had some difficulty
adapting to stressful circumstances, such as crowds and loud
places, he maintains that he is close to 2 of his children
and participates regularly in leisure activities. In sum,
based on all the evidence of record, the Board finds that an
initial evaluation in excess of 30 percent is not warranted.
Further, the veteran's GAF scores, during the appeal period,
ranged from 60-65, which is only indicative of only some mild
symptoms (e.g. depressed mood and mild insomnia) or some
difficulty in social, occupational, or school functioning
(e.g. occasional truancy, or theft within the household), but
generally functioning pretty well, and has some meaningful
interpersonal relationships. American Psychiatric
Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 46-
47 (American Psychiatric Association 4th ed. 1994).
Notwithstanding the above discussion, a rating in excess of
the assigned schedular evaluation for the veteran's service-
connected PTSD disability may be granted when it is
demonstrated that the particular disability presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular scheduler standards. See 38
C.F.R. § 3.321(b)(1).
The Board finds that there is no evidence that the veteran's
service-connected PTSD disability has presented such an
unusual or exceptional disability picture at any time as to
require consideration of an extraschedular evaluation
pursuant to he provisions of 38 C.F.R. § 3.321(b). The
veteran has not required any psychiatric hospitalization for
his service -connected PTSD disability. Furthermore, the
mental health treatment underwent by the veteran was
abandoned by him, as reflected in the VA Outpatient Clinic
appointment reports from February 2004 to October 2007, as
well as, the veteran's October 2007 statement. The veteran
has not demonstrated marked interference with employment due
to psychiatric disability.
There is no objective evidence of any symptoms due to
service-connected PTSD disability that are not contemplated
by the pertinent rating criteria. Consequently, the Board
concludes that referral of this case for consideration of the
assignment of an extraschedular rating is not warranted. See
Floyd v. Brown, 8 Vet. App. 88, 96 (1996); Bagwell v. Brown,
9 Vet. App. 337, 338-39 (1996) (when evaluating a rating
claim, it is well established that the Board may affirm an
RO's conclusion that a claim does not meet the criteria for
submission for an extraschedular rating, or may reach such a
conclusion on its own).
Because the appeal ensues from the veteran's disagreement
with the evaluation assigned in connection with the original
grant of service connection, the potential for the assignment
of separate, or "staged" ratings for separate periods of
time, based on the facts found, must also be considered.
Fenderson v. West, 12 Vet. App. 119 (1999). Based upon the
guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505
(2007), the Board has considered whether a staged rating is
appropriate. As reflected in the decision above, the Board
did not find variation in the veteran's psychiatric
symptomatology or clinical findings that warrant the
assignment of any staged ratings for the PTSD disability. In
reaching this conclusion, the Board has considered the
applicability of the benefit-of-the-doubt doctrine.
However, because the preponderance of the evidence is against
the veteran's claim for an initial rating is excess of 30
percent for his PTSD disability, the benefit-of-the-doubt
doctrine is inapplicable. See Ortiz v. Principi, 274 F.3d
1361 (Fed. Cir. 2001).
ORDER
An initial increased evaluation in excess of 30 percent for
PTSD is denied.
____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs